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UNITED STATES v. ZEIGER

October 10, 1972

UNITED STATES of America
v.
Errol ZEIGER


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 The defendant, Errol Zeiger, is charged in a multi-count indictment with having committed, on or about October 9, 1969, an assault with intent to kill while armed, 22 D.C.Code ยง 3202 (Supp. V, 1972), and other related offenses. *fn1" His counsel sought and was granted a motion for a pre-trial evidentiary hearing on the admissibility of the results of a polygraph examination administered to the defendant on October 21, 1969, by Lt. Hamilton W. Shoop, then a member of the Metropolitan Police Department. Over several days of hearings the defense submitted expert testimony intended to establish a foundation for the admission at trial of testimony of Lt. Shoop regarding the polygraph examination of the defendant.

 The Court, after consideration of the entire record including the transcript of the proceedings, as well as the memoranda of counsel concludes that an adequate and sufficient foundation has been established in this case for permitting the presentation of expert testimony on the results of the defendant's polygraph examination at the trial of this proceeding.

 The rule governing admissibility of the results of polygraph tests in this Circuit was first established in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923) and has never been disturbed. *fn2" In that trial proceeding the defendant offered an expert witness to testify on the result of a deception test made upon the defendant. *fn3" In affirming the trial judge's refusal of the proffer, the court said:

 
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
 
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development and experiments thus far made." 293 F. at 1014

 The case thus established a test for the admission of polygraph testimony and made the initial factual finding that the state of the art of polygraphy failed to satisfy the test at that time. Federal courts in other circuits subsequent to Frye have denied requests to receive this type of evidence where opposed by one of the parties. *fn4" This Court, when presented with a proffer of a polygraph examination is necessarily bound by the dictates of Frye which, having established a standard, require the trial court to determine whether the requirements for admission have been met. *fn5"

 Applying the standard promulgated in Frye, the Court is now called upon to determine whether the polygraph currently enjoys general acceptance among the authorities in the field. A preliminary task is to define the phrase "general acceptance." The cases following the Frye rationale have been carefully considered and they offer little guidance. *fn6" It is observed, however, that acceptance of the polygraph can be meaningfully determined only with respect to a particular purpose for which the device is used and the degree of reliability required for that purpose. There is nearly unanimous recognition that the polygraph can achieve accuracy of better than 50 per cent, but few would accept the proposition that the technique is almost infallible. *fn7" For the purpose here at issue, Frye requires such acceptance and recognition "as would justify the courts in admitting expert testimony" deduced from a polygraph examination. *fn8" The general criterion required for the admission of evidence is its relevance or tendency to prove a material fact. *fn9" "[If] evidence is logically probative, it should be received unless there is some distinct ground for refusing to hear it." *fn10" And so Frye has been interpreted to demand general acceptance among the experts that current polygraph technique possesses a degree of reliability which satisfies the courts of its probative value. The term "general" is understood to have been used in its ordinary and non-technical sense, as meaning "common to many, or the greatest number; widespread; prevalent; extensive though not universal." *fn11"

 In determining whether the modern polygraph has gained general acceptance, it is appropriate to note the status of the detection of deception at the time of Frye, when polygraphy was adjudged to be in the "twilight zone" between the experimental and demonstrable stages. By 1923 knowledge of the phenomenon of detection of deception, although it dated back nearly 30 years, was apparently confined to a small group of persons who had experimented with detection devices. *fn12" Some reported a high percentage of accuracy in their results but few credible scientific studies had been published. *fn13" There was scarcely any discussion of the subject in legal periodicals and the courts had not been afforded opportunity to hear and weigh testimony from the contemporary experts concerning the reliability and the acceptance of the devices. *fn14"

 Today, polygraphy has emerged from that twilight zone into an established field of science and technology. The polygraph has been and continues to be the subject of scientific study and investigation, *fn15" and although the precise limitations of the device and the intricacies which affect its performance may not be understood to the complete satisfaction of the scientific community, enough is known about it to confirm that it is a useful tool for detecting deception. Its extensive use by law enforcement agencies, governmental security organizations, and private industry throughout the country is testimony to the undeniable efficacy of the technique. *fn16" The practice has acquired the usually accepted indicia of a profession, such as a national professional organization, training schools, qualification standards, yearly seminars, and specialized publications. A growing number of courts have admitted in recent years that the polygraph does contribute to the administration of justice. *fn17" Trial courts which have had the benefit of the presentation of foundational testimony have concluded that polygraph technique is reliable, although they have ruled against its unstipulated admission for other reasons. *fn18" The Court has been informed that one Federal District Judge has recently ruled that he will admit polygraph evidence under certain conditions. *fn19"

 A comment is in order concerning the consideration which the Court has given to the opinions of experts who are neither physiologists nor psychologists. Part of the holding in Frye was phrased in terms of "recognition among physiological and psychological authorities" but the general rule established by the case called for "general acceptance in the particular field in which [the polygraph] belongs." Although polygraphy at one time may have been dependent on physiological and psychological authorities for certification of its reliability, it is no longer appropriate to confine consideration solely to those disciplines. Certainly any individuals who have had experience in the specialized area of the polygraph, whether they are medical doctors, scientists, or polygraph examiners, can contribute to the Court's inquiry into the matters of acceptance and reliability. For this reason, testimony by any qualified expert in the field of polygraphy concerning studies and experiences with the machine is relevant to questions which are before the Court.

 The Court received testimony from several experts during the course of the hearings verifying the reliability of the polygraph. John E. Reid, one of the leading authorities in the field, testified that in studies he had recently conducted in collaboration with Frank S. Horvath, an accuracy of better than 91 per cent among experienced examiners was found.19a He also asserted that in the 1966 edition of his text, Truth and Deception, coauthored with Fred E. Inbau, a professor of law at Northwestern University, the authors reversed the position on the admissibility of polygraph evidence which they adopted in an earlier work because of significant advances in the field. *fn20" In their recent text the authors explain:

 
The Polygraph technique which we have described, when properly used by competent, experienced examiners, possesses a high degree of accuracy. This we can conscientiously report from our experience in the examinations, personally, or in the supervision of the Polygraph examinations, of over 35,000 ...

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